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Judicial Services and Courts Act

LAWS OF THE REPUBLIC OF VANUATU
CONSOLIDATED EDITION 2006

Commencement: 2 June 2003,
except s.22, 37, 8(1), 40(4), 42(6), 47(2) and
the Schedule which commenced 12 August 2003

CHAPTER 270
JUDICIAL SERVICES AND COURTS

Act 54 of 2000
Act 4 of 2003

ARRANGEMENT OF SECTIONS

PART 1 – PRELIMINARY

1. Definitions

PART 2 – JUDICIAL SERVICE COMMISSION

2. Constitution of the Commission
3. Objects
4. Functions
5. Powers
6. Committees
7. Meetings and procedure
8. Remuneration and expenses of members
9. Secretary
10. Funding
11. Protection of proceedings and publications

PART 3 – MAGISTRATES’ COURT AND MAGISTRATES

Division 1 – Magistrates’ Court and its jurisdiction

12. Magistrate’s Courts continue in existence as a single court
13. Constitution
14. Criminal and civil jurisdiction
15. Orders for community service
16. Contempt and concurrent jurisdiction
17. Reservation of questions of law

Division 2 – Magistrates

18. Appointment
19. Chief magistrate
20. Acting appointments
21. Disqualification
22. Salaries, allowances and benefits
23. Vacation of office and discharge
24. Magistrate may sit after appointment terminated and other paid work

Division 3 – Clerks and employees

25. Clerks of court
26. Other employees

PART 4 – SUPREME COURT AND JUDGES

Division 1 – The Supreme Court

27. Constitution
28. Unlimited jurisdiction throughout Vanuatu
29. Administration
30. Appeals from Magistrates’ Court
31. Review of convictions and reservation of questions of law
32. Contempt

Division 2 – Judges

33. Appointment of Chief Justice and judges
34. Acting Chief Justice
35. Acting judges
36. Vacation of office and discharge
37. Salaries, benefits and allowances
38. Disqualification
39. Judge may sit after appointment terminated and other paid work

Division 3 – Officers and employees

40. Registrar
41. Functions of the registrar relating to court personnel
42. (Repealed)
43. Other officers
44. Other employees

PART 5 – THE COURT OF APPEAL

45. Appointment of Supreme Court judges and disqualification
46. Administration
47. Registrar and other officers
48. Appellate jurisdiction

PART 6 – FUNDING, PROTECTION AND ACCOUNTABILITY OF THE JUDICIAL SERVICE AND THE COURTS

49. Funding of the Judicial Service and the Vanuatu Courts
50. Management improvement plan
51. Annual report and financial statements
52. Proper accounts to be kept
53. Audit
54. Proceedings arising out of administration
55. Protection of judges, magistrates and other officers
56. Improper influence and obstruction of judicial officers

PART 7 – DISCIPLINE OF COURT PERSONNEL

57. Application of Part
58. Disciplinary offences
59. Establishment of Court Personnel Disciplinary Board
60. Hearing and confirmation of disciplinary offences
61. Rights of appeal by court personnel
62. Powers of Board to summon witnesses etc.
63. Offence to improperly influence Commission or Board

PART 8 – MISCELLANEOUS

64. Seals
65. Inherent powers of Supreme Court and Court of Appeal, and custom
66. Judicial Committee and Rules of Court
67. Review of salaries and benefits
68. Oath or affirmation of office
69. Continuous service for public servants
70. Statutory orders
71. (Omitted)

PART 9 – REPEAL AND TRANSITIONAL PROVISIONS

72. Repeal of Courts Act
73. Judges – Transitional and savings provision
74. Magistrates – Transitional and savings provision
75. Court personnel – Transitional and savings provision
76. Savings of orders, acting appointments and Rules of Court
77. Existing proceedings saved
78. Act does not take away or limit jurisdiction

SCHEDULE

Part 1 – Table of Salaries, Allowances and Benefits of Judges, Master and Members of the Commission
Part 2 – Table of Salaries and Benefits of Chief Magistrate, Registrar and Magistrates
Part 3 – Details Of Benefits
Part 4 – (Omitted)

JUDICIAL SERVICES AND COURTS

An Act to provide for the independence of the Judicial Service, the functions and powers of the Judicial Service Commission in addition to those in the Constitution, the Courts of the Republic of Vanuatu, and for related purposes.

PART 1 – PRELIMINARY

1. Definitions

(1) In this Act, unless the contrary intention appears:

"Board" means the Court Personnel Disciplinary Board established under section 59;

"chief magistrate" means the chief magistrate appointed under section 19;

"commencement" means the commencement of this Act;

"Commission" means the Judicial Service Commission referred to in Article 48 of the Constitution;

"committee" means a committee established by the Commission under section 6;

"court personnel" means:

(a) a clerk of the Magistrates’ Court appointed under section 25; or

(b) an employee of the Magistrates’ Court engaged under section 26; or

(c) the registrar or any other officer of the Supreme Court appointed under section 40 or 43; or

(d) an employee of the Supreme Court engaged under section 44; or

(e) the registrar or any other officer of the Court of Appeal appointed under section 47;

"immediate family" of a person means the person’s spouse and any child of the person and/or the person’s spouse;

"judge" means a person appointed as a member of the judiciary under Article 47(2) of the Constitution or as an acting judge under Article 47(5) of the Constitution and includes the Chief Justice;

"judicial officer" means a judge or magistrate;

"Judicial Service" means the Judicial Service mentioned in subsection (2);

"magistrate" means a magistrate appointed under section 18, and includes:

(a) the chief magistrate; and

(b) any senior magistrate; and

(c) any acting magistrate, senior magistrate or chief magistrate;

"Magistrates’ Court" means the Magistrates’ Court of Vanuatu continued in existence under section 12;

"Minister" means the Minister responsible for justice;

"registrar" means a person appointed as registrar under section 40;

"Rules of Court" means the rules made under section 66;

"salary" means basic salary;

"senior magistrate" means a magistrate appointed as a senior magistrate under section 18;

"statutory orders" means the statutory orders made under this Act;

"this Act" includes the statutory orders;

"Vanuatu Courts" means:

(a) the Court of Appeal; and

(b) the Supreme Court; and

(c) the Magistrates’ Court; and

(d) the Island Courts established under the Island Courts Act [Cap. 167]; and

(e) any office or service associated with any of these Courts, including translations, interpretation, libraries and archives.

(2) The Judicial Service is constituted by:

• (a) judges; and
  
• (b) magistrates; and
  
• (c) other judicial officers; and
  
• (d) court personnel.
  

PART 2 – JUDICIAL SERVICE COMMISSION

2. Constitution of the Commission

(1) The Commission consists of:

1. the Minister responsible for Justice, as chairman; and
   
2. the Chief Justice; and
   

100. the chairman of the Public Service Commission; and
     

4. a representative of the National Council of Chiefs appointed by the Council.
   

(2) The Commission may elect one of its members to be the Deputy Chairman of the Commission. The Deputy Chairman must perform the functions of the Chairman (including those under section 7(3)) if the Chairman is:

(a) absent from Vanuatu; or

(b) unable for any reason to perform the functions of the Chairman.

(3) A vacancy in the Commission does not affect the validity of the proceedings or decisions of the Commission.

3. Objects

(1) The objects of the Commission are:

(a) to promote and protect the independence and the efficiency of the Judicial Service; and

(b) to promote the operation of the rule of law; and

(c) to promote and monitor generally the performance and accountability of the Judicial Service.

(2) The Minister must not act so as to interfere with the independence of the Judicial Service in performing his or her functions:

• (a) as the Minister responsible for justice; and
  
• (b) as the Chairman of the Commission
  

4. Functions

(1) The Commission has the following functions:

(a) to ensure that:

• (i) the appointment and promotion of judicial officers and court personnel is undertaken in accordance with the relevant provisions of the Constitution and this Act; and
  
• (ii) the appointment, promotion, transfer and discharge of, and disciplinary steps against, judicial officers and court personnel takes place without favour or prejudice; and
  
• (iii) the law and administrative procedures that are applicable to the matters mentioned in subparagraphs (i) and (ii) are applied uniformly and correctly to judges, magistrates and court personnel, as the case requires;
  

(b) to ensure that no improper influencing or victimisation of judicial officers and court personnel takes place;

(c) to carry out or cause to be carried out the investigations that it considers necessary for the purposes of this Act;

(d) to promote the training of judicial officers and court personnel;

(e) to compile a code of conduct for judicial officers and keep it up to date;

(f) to inform the Minister about:

(i) administrative matters which are applicable to judicial officers and court personnel, including salaries, allowances and other conditions of service; and

(ii) the general maintenance and upkeep of the courts in Vanuatu, including buildings, libraries, furniture and furnishings, and plant and equipment;

(g) to prepare a report for each year about:

(i) any matter that is relevant to the independence and efficiency of the administration of justice; and

(ii) any action needed to be taken to strengthen the operation of law; and

(iii) reforms that may be needed to any laws;

(h) (repealed)

(i) such other functions as are conferred on it by this Act or any other Act;

(j) to do anything else that is incidental or conducive to the performance of any of the preceding functions.

(2) The report referred to in subsection (1)(g) must be prepared within 3 months after the end of the relevant year and the Minister must table in the Parliament a copy of the report within 5 sitting days after the commencement of the next ordinary session.

(3) In undertaking an investigation under subsection (1) (c), the Commission must observe the rules of natural justice.

(4) In undertaking its functions, the Commission may consult with representatives of the legal profession and any other person in its discretion.

5. Powers

(1) The Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) Without limiting subsection (1), the powers of the Commission include the following:

(a) subject to any other Act or law, to obtain access to information or documents (other than classified material within the meaning of the Official Secrets Act [Cap. 111]) for the purposes of an investigation;

(b) to require any person by notice in writing to appear before it to give evidence and to produce any document or thing;

(c) subject to subsection (5), to publish any finding, opinion or recommendation of the Commission.

(3) A person who obstructs or improperly influences the Commission or a committee of the Commission in the execution of the Commission’s powers under subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding VT 100,000 or imprisonment for a term of not more than 6 months, or both.

(4) A person who is required to appear before the Commission under subsection (2) (b) may be represented by a qualified legal practitioner.

(5) The Commission cannot publish any information or document that is commercial in confidence and the disclosure of which could reasonably be expected to prejudice substantially the commercial interests of a person.

6. Committees

(1) The Commission may establish committees to assist and advise the Commission on any matter relating to the administration of this Act.

(2) A committee may, subject to the directions of the Commission, exercise any of the powers referred to in section 5(2) (a), (b) or (c).

(3) The Commission is to determine the composition of a committee. A committee may include persons who are not members of the Commission.

7. Meetings and procedure

(1) The Commission must meet at least 6 times each year at such times and places as the Chairman determines.

(2) A quorum of the Commission consists of 3 members.

(3) The Chairman of the Commission must:

• (a) preside at a meeting of the Commission; and
  
• (b) regulate the proceedings of the meeting; and
  
• (c) cause minutes to be kept of the meeting.
  

(4) The meetings of the Commission are to take place in private unless the Chairman of the Commission directs otherwise.

(5) Subject to this Act and the Constitution, the Commission is to regulate its own procedures.

8. Remuneration and expenses of members

(1) A person holding the office of Chairman or member of the Commission is entitled to the salary, allowances and benefits applicable to that office as set out in the table in Part 1 of the Schedule. The benefits are described in detail in Part 3 of the Schedule.

(2) Subsections (3) to (6) apply to a member of a committee of the Commission.

(3) The rate of remuneration payable to the member is the rate determined under the Government Remuneration Tribunal Act [Cap. 250].

(4) If a rate of remuneration has not been determined under that Act, the member is to be paid such remuneration as the Commission determines in writing.

(5) The member is to be paid such allowances, including for travelling and subsistence expenses incurred by him or her in the performance of his or her duties, as the Commission determines in writing.

(6) A determination made under subsection (4) or (5) is a statutory order.

9. Secretary

(1) The Commission must appoint a Secretary of the Commission who will be the administrative head of the Commission. The Secretary may be appointed on a part time basis and may hold another office.

(2) The Secretary must provide administrative support services and a secretariat to the Commission.

(3) The Secretary is subject to the direction of the Commission.

(4) The Commission may appoint such other employees as are necessary for the purposes of the Commission.

(5) The Secretary and any other employee must be appointed on merit.

(6) The Commission must determine the terms and conditions of appointment of the Secretary and any other employees of the Commission. A determination must be in writing and is a statutory order.

10. Funding

(1) The Government must ensure that there is a sufficient budget allocated to the Commission to enable it to perform its functions and exercise its powers.

(2) The operations of the Commission are to be funded by monies appropriated by Parliament for that purpose.

(3) To avoid doubt, the budget procedure provided for by the Public Finance and Economic Management Act [Cap. 244] applies in relation to the budget for the Commission.

(4) The Commission must keep proper accounting records in relation to its financial affairs and must cause to be prepared annual statements of account for each financial year.

(5) The Commission’s accounts for each financial year must be audited within 3 months after the end of that financial year by the Auditor-General or a person authorised by the Auditor-General.

11. Protection of proceedings and publications

All proceedings and publications of the Commission are protected as if they were proceedings and publications of the Supreme Court.

PART 3 – MAGISTRATES’ COURT AND MAGISTRATES

Division 1 – Magistrates’ Court and its jurisdiction

12. Magistrates’ Courts continue in existence as a single court

(1) The Magistrate’s Courts established by section 1 of the Courts Act [Cap. 122] continue in existence on and after commencement as the Magistrates’ Court of Vanuatu.

(2) The Magistrates’ Court has jurisdiction throughout the whole of Vanuatu.

(3) The Commission may by statutory order prescribe districts and registries for the administration of the Magistrates’ Court.

13. Constitution

(1) The Magistrates’ Court is to be presided over by a single magistrate.

(2) A magistrate must perform the functions and exercise the powers that are conferred on him or her by or under this Act and any other law.

14. Criminal and civil jurisdiction

(1) The Magistrates’ Court has jurisdiction to hear and determine in a summary way civil proceedings as provided for by the Magistrates’ Court (Civil Jurisdiction) Act [Cap. 130] and any other law.

(2) Subject to the provisions of any other Act or law, the Magistrates’ Court has jurisdiction to hear and determine in a summary way criminal proceedings for an offence for which the maximum punishment does not exceed imprisonment for 2 years. A magistrate must not impose a sentence greater than imprisonment for 2 years.

(3) The Magistrates’ Court must hear and determine criminal proceedings without a preliminary judicial inquiry.

(4) A senior magistrate may on application or at his or her discretion hear and determine in a summary way criminal proceedings for an offence for which the maximum punishment does not exceed imprisonment for 10 years. However, a senior magistrate must not impose a sentence greater than imprisonment for 5 years.

(5) Despite subsections (2) and (4), a magistrate may sentence consecutively an offender in respect of 2 or more offences to a term of imprisonment exceeding 2 years, but not exceeding 4 years.

(6) The Supreme Court may, by order made under its seal, invest the Magistrates’ Court with jurisdiction to try any proceeding in respect of a particular class of offence or proceeding or a particular case.

15. Orders for community service

(1) If the Magistrates’ Court sentences a person to a term of imprisonment of 6 months or less, the Court may as an alternative order the person to perform specified work for community purposes for a specified period not exceeding 100 hours subject to specified conditions.

(2) A person undergoing community work who is absent from such community work without a lawful excuse is guilty of an offence and is punishable on conviction by a term of imprisonment not exceeding one month or a fine not exceeding VT 20,000 and the order is to continue. In the alternative, the person is to be sentenced for the original offence and the order discharged..

16. Contempt and concurrent jurisdiction

(1) The Magistrates’ Court has the power to punish summarily a person for contempt of court by imprisonment for a term not exceeding 2 months or a fine not exceeding VT 20,000.

(2) The jurisdiction conferred on the Magistrates’ Court does not in any way restrict or affect the jurisdiction of the Supreme Court.

17. Reservation of questions of law

(1) A magistrate may reserve for the consideration of the Supreme Court on a case to be stated by the magistrate any question of law which may arise on the hearing of any criminal or civil proceedings.

(2) The magistrate must not deliver judgement in the proceedings until he or she has received the opinion of the Supreme Court.

(3) The Supreme Court has power to determine every such question after hearing argument.

Division 2 – Magistrates

18. Appointment

(1) The President must appoint magistrates on the recommendation of the Commission which must be based on merit.

(2) The Commission must not recommend a person for appointment as a magistrate unless the person:

• (a) holds a degree in law from a recognised tertiary institution; or
  
• (b) has suitable legal training or experience.
  

(3) Each magistrate is to be appointed for the whole of Vanuatu.

(4) The President must appoint senior magistrates on the recommendation of the Commission which must be based on merit.

(5) The Commission must not recommend a person for appointment as a senior magistrate unless the person has at least 3 years’ experience as a magistrate.

(6) A senior magistrate may, with the written approval of the Commission, resign as a senior magistrate, but remain a magistrate.

19. Chief magistrate

(1) The President must appoint a magistrate to be the chief magistrate on the recommendation of the Commission which must be based on merit.

(2) The Commission must not recommend a person for appointment as the chief magistrate unless the person has at least 5 years’ experience as a magistrate.

(3) The chief magistrate holds office for a period of 5 years and is eligible for reappointment.

(4) With the approval of the Commission, the chief magistrate may resign as chief magistrate but remain a magistrate.

(5) The chief magistrate, subject to prior consultation with the Chief Justice and the Registrar:

• (a) is responsible for the management of the administrative affairs of the Magistrates’ Court; and
  

(b) may issue directions with respect to practices and procedures of Magistrates’ Court, however, such directions must not be inconsistent with the Rules of Court; and

(c) must identify training programmes for magistrates; and

(d) must bring to the notice of the Commission any matter which affects the employment of magistrates; and

(e) may discipline magistrates by way of counselling; and

(f) is responsible for the efficient management and control of court personnel of the Magistrates’ Court; and

(g) must implement statutory orders relating to magistrates.

(6) The chief magistrate is responsible for the orderly and expeditious exercise of the Magistrates’ Court’s jurisdiction and power, and must ensure that:

(a) the business of the Magistrates’ Court is undertaken in a just and fair manner at a reasonable cost; and

(b) all cases are listed, brought on for hearing and determined as soon as possible; and

(c) delays in proceedings are avoided through unnecessary adjournments and that reasonable notice is given to parties of changes to hearing dates.

(7) For the sole purpose of managing the administrative affairs of the Magistrates’ Court, the chief magistrate has power to do all things that are necessary or convenient to be done. The chief magistrate must liaise with the Chief Justice about administrative matters common to the Magistrates’ Court and the Supreme Court (for example, accommodation).

20. Acting appointments

(1) The President must appoint a person as an acting magistrate or as the acting chief magistrate if the Commission recommends that the appointment of the person is necessary for transacting the business of the Magistrates’ Court, whether or not an appointment has been made to that office.

(2) The Commission must not recommend a person for an acting appointment unless the person has the qualifications necessary for appointment on a permanent basis.

(3) A person appointed to act must continue to act until the end of the period for which he or she is appointed unless the person:

• (a) earlier resigns his or her acting appointment; or
  

(b) is suspended or removed from office under section 23.

21. Disqualification

(1) If:

(a) a magistrate has a personal interest in any proceedings; or

(b) there is actual bias or an apprehension of bias by the magistrate in the proceedings;

he or she must disqualify himself or herself from hearing the proceedings and direct that the proceedings be heard by another magistrate.

(2) A party to any proceedings may apply to a magistrate to disqualify himself or herself from hearing the proceedings.

(3) If a magistrate rejects an application for disqualification, the applicant may appeal to the Supreme Court against the rejection. If an appeal is made, the magistrate must adjourn the proceedings until the appeal has been heard and determined.

(4) A magistrate who rejects an application for disqualification must give written reasons for the rejection to the applicant.

22. Salaries, allowances and benefits

A person holding the office of magistrate or chief magistrate, or a person acting in that office, is entitled to the salary, allowances and benefits applicable to that office as set out in the table in Part 2 of the Schedule. The benefits are described in detail in Part 3 of the Schedule.

23. Vacation of office and discharge

(1) A magistrate holds office until he or she reaches the age of 55.

(2) A magistrate must not be suspended or removed from office except in accordance with the provisions of this section.

(3) The President must suspend or remove a magistrate from office on the recommendation of the Commission.

(4) The Commission may recommend the suspension or removal of a magistrate:

(a) for gross misconduct; or

(b) on account of physical or mental incapacity to carry out his or her duties of office efficiently; or

(c) if the magistrate is convicted and sentenced on a criminal charge; or

(d) for professional incompetence.

(5) A magistrate who is suspended from office is to be paid his or her full salary during the period of the suspension.

(6) The Commission may, at the request of a magistrate, allow the magistrate to vacate his or her office:

(a) on account of continued ill-health; or

(b) for any other reason which the Commission considers sufficient.

(7) A request under subsection (6)(b) must be made to the Commission at least 6 months before the date on which the magistrate wishes to vacate his or her office, unless the Commission approves a shorter period in a particular case.

(8) If a magistrate is allowed to vacate his or her office under subsection (6)(a) or (6)(b), the magistrate is entitled to the pension and benefits prescribed by the statutory orders.

24. Magistrate may sit after appointment terminated and other paid work

(1) A magistrate whose appointment has terminated (otherwise than by reason of his or her removal from office) may sit as a magistrate for the purpose of hearing, giving judgement in or otherwise finishing any proceedings which were commenced before the termination of his or her appointment.

(2) A magistrate must not perform any paid work outside his or her duties of office without the consent of the Commission.

Division 3 – Clerks of court and employees

25. Clerks of court

(1) The Commission may appoint one or more clerks of court to be attached to the Magistrates’ Court. An appointment must be made on merit.

(2) A clerk of court is under the direction and control of a magistrate.

(3) A magistrate may direct a person to perform the duties of a clerk of court if an appointment has not been made or the clerk is not available for any reason.

(4) The duties of a clerk of court are to be prescribed by the Rules of Court, and a clerk of court is entitled to the salary, benefits and allowances as are prescribed by the statutory orders.

26. Other employees

(1) The Commission may engage on merit such other employees as the Commission considers necessary for the purposes of the Magistrates’ Court.

(2) An employee is entitled to the salary, benefits and allowances as are prescribed by the statutory orders.

PART 4 – SUPREME COURT AND JUDGES

Division 1 – The Supreme Court

27. Constitution

The Supreme Court must be constituted by a judge sitting alone:

(a) in the exercise of its jurisdiction under Articles 6, 16(4), 39(3), 53 and 54 of the Constitution; and

(b) in any other proceeding unless an Act or law otherwise provides.

28. Unlimited jurisdiction throughout Vanuatu

(1) The Supreme Court has:

(a) unlimited jurisdiction throughout Vanuatu to hear and determine any civil or criminal proceedings in Vanuatu, including matters of custom; and

(b) all jurisdiction that is necessary for the administration of justice in Vanuatu.

(2) Subject to the Rules of Court, a judgement of the Supreme Court has effect and may be executed in any part of Vanuatu.

(3) To avoid doubt, subsection (2) does not limit the effect of a judgement of the Supreme Court in any other country.

29. Administration

(1) Subject to and in accordance with this Act, the Supreme Court is to administer its own affairs and the Chief Justice is responsible for the management of the administrative affairs of the Court.

(2) Without limiting subsection (1), the Chief Justice is responsible for the orderly and expeditious exercise of the Supreme Court’s jurisdiction and power, and must ensure that:

(a) the business of the Court is undertaken in a just and fair manner at a reasonable cost; and

(b) all cases are listed, brought on for hearing and determined as soon as possible; and

(c) delays in proceedings are avoided through unnecessary adjournments and reasonable notice is given to parties of changes to hearing dates.

(3) For the purpose of the management of the administrative affairs of the Supreme Court, the Chief Justice has power to do all things that are necessary or convenient to be done.

(4) Without limiting subsection (3), the Chief Justice has the power on behalf of the State to:

(a) to enter into contracts; and

(b) to acquire, hold and dispose of personal property; and

(c) to take on hire, to exchange, and to accept on deposit or loan, library material, and also furnishings, equipment and goods needed for the purposes of the Supreme Court.

(5) Subsection (4) does not authorise the Chief Justice to acquire any interest or right in land, or to enter into a contract under which the State is to pay or receive an amount exceeding VT 1,000,000 without the approval of the Commission.

(6) The Chief Justice may appoint committees consisting of judges, or of judges and other persons, for the purpose of assisting him or her in the management of the administrative affairs of the Supreme Court.

(7) The Chief Justice may, in writing, delegate all or any of his or her powers associated with administration of the affairs of the Supreme Court under subsection (1) to any one or more of the judges.

(8) Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Supreme Court may be instituted by or against the State, as the case requires.

(9) The Commission may by statutory order prescribe districts and registries for the administration of the Supreme Court.

30. Appeals from Magistrates’ Court

(1) Subject to the provisions of any other Act, the Supreme Court has jurisdiction to hear and determine appeals from judgements of the Magistrates’ Court on all or any of the following:

(a) a question of law;

(b) a question of fact;

(c) a question of mixed law and fact.

(2) The Supreme Court in hearing an appeal:

• (a) is to proceed on the face of the record of the Magistrates’ Court; and
  
• (b) may exercise such powers as may be prescribed by or under this Act or any other law; and
  
• (c) has the powers and jurisdiction of the Magistrates’ Court; and
  
• (d) may review the procedures and the findings (whether of fact or law) of the Magistrates’ Court; and
  
• (e) may substitute its own judgement for the judgement of the Magistrates’ Court; and
  
• (f) may receive evidence.
  

(3) (Repealed)

(4) The Supreme Court is the final court of appeal for the determination of questions of fact. However, an appeal lies to the Court of Appeal from the Supreme Court on a question of law if the Court of Appeal grants leave.

31. Review of convictions and reservation of questions of law

(1) The Supreme Court has power at any time to review the conviction of a person by the Magistrates’ Court, whether or not there has been an appeal against the conviction.

(2) The Supreme Court may exercise the power:

• (a) on its own motion; or
  
• (b) upon the petition of the Public Prosecutor; or
  
• (c) upon the petition of the defendant or any other interested person.
  

(3) If the Supreme Court reviews a conviction and is of the opinion, by reason of new evidence or otherwise, that a miscarriage of justice has or may have occurred, the Supreme Court may do all or any of the following:

• (a) set aside the conviction;
  
• (b) order a new trial before the Magistrates’ Court that made the conviction;
  

(c) make such other orders in the interest of justice and give all necessary and consequential directions.

(4) If the Supreme Court makes an order setting aside a conviction, the convicted person:

• (a) if he or she is imprisoned – must be released immediately; or
  
• (b) if he or she has paid a fine – must be refunded the amount paid.
  

(5) A judge may reserve for the consideration of the Court of Appeal on a case to be stated by the judge any question of law which may arise on the hearing of any criminal or civil proceedings.

(6) The judge must not deliver judgement in the proceedings until he or she has received the opinion of the Court of Appeal.

(7) The Court of Appeal has power to determine every such question after hearing argument.

32. Contempt

The Supreme Court has power to punish summarily a person for contempt of court by imprisonment for a term not exceeding one year or a fine not exceeding VT 100,000.

Division 2 – Judges

33. Appointment of Chief Justice and judges

(1) The Chief Justice must be appointed in accordance with Articles 47 and 49 of the Constitution.

(2) A judge must be appointed in accordance with Articles 47(2) and 49(4) of the Constitution.

(3) In preparing advice in relation to the appointment of a judge under Article 47(2) of the Constitution, the Commission may have regard to the following:

(a) whether the person has sufficient experience and ability to fulfil the duties of a judge;

(b) whether the person has public confidence and standing in the community in which he or she usually resides, and is a person of good character;

(c) in the case of a person from outside Vanuatu – is or was a judge of a superior court in another jurisdiction.

(4) A judge is to be appointed for the whole of Vanuatu.

(5) The judges, other than the Chief Justice, have seniority according to the dates of their appointment unless the Commission otherwise directs.

34. Acting Chief Justice

(1) If:

(a) the Chief Justice is absent from Vanuatu or is unable or unavailable to perform the duties of his or her office; or

(b) there is a vacancy in the office of Chief Justice;

the next senior judge who is able and willing to do so must perform the duties of the Chief Justice. That judge may exercise the powers of the Chief Justice and is to be designated Acting Chief Justice.

(2) (Repealed)

(3) (Repealed)

35. Acting judges

(1) The President must appoint a person as an acting judge if the Commission recommends the appointment of the person is necessary for transacting the business of the Supreme Court.

(2) A person must not be appointed as an acting judge unless he or she is qualified for appointment in accordance with Article 49(4) of the Constitution.

(3) In recommending a person for appointment, the Commission must have regard to the matters in section 33(3).

(4) A person appointed to act must continue to act until the end of the period for which he or she is appointed, unless the person:

(a) resigns from his or her acting appointment; or

(b) is removed under Article 47(3) of the Constitution.

(5) (Repealed)

(6) (Repealed)

36. Vacation of office and discharge

(1) A judge holds office until he or she reaches the age of 60.

(2) A judge must not be removed from office except in accordance with Article 47(3) (a) or (b) of the Constitution.

(3) The Commission may, at the request of a judge, allow the judge to vacate his or her office:

• (a) on account of continued ill-health; or
  
• (b) for any other reason which the Commission considers sufficient.
  

(4) A request under subsection (3)(b) must be made to the Commission in writing at least 6 months before the date on which the judge wishes to vacate his or her office, unless the Commission approves a shorter period in a particular case.

(5) If a judge is allowed to vacate his or her office under subsection (3) (a) or (3) (b), the judge is entitled to the pension and benefits prescribed by the statutory orders.

37. Salaries, benefits and allowances

A person holding the office of Chief Justice or judge, or acting in that office, is entitled to the salary, allowances and benefits applicable to that office as set out in the table in Part 1 of the Schedule. The benefits are described in detail in Part 3 of the Schedule.

38. Disqualification

(1) If:

(a) a judge has a personal interest in any proceedings; or

(b) there is actual bias or an apprehension of bias by the judge in the proceedings;

he or she must disqualify himself or herself from hearing the proceedings and direct that the proceedings be heard by another judge.

(2) A party to any proceedings may apply to a judge to disqualify himself or herself from hearing the proceedings.

(3) If a judge rejects an application for disqualification, the applicant may appeal to the Court of Appeal against the rejection. If an appeal is made, the judge must adjourn the proceedings until the appeal has been heard and determined.

(4) A judge who rejects an application for disqualification must give written reasons for the rejection to the applicant.

39. Judge may sit after appointment terminated and other paid work

(1) A judge whose appointment has terminated (otherwise than by reason of his or her removal from office) may sit as a judge for the purpose of hearing, giving judgement in or otherwise finishing any proceedings that were commenced before the termination of his or her appointment.

(2) A judge must not perform any paid work outside his or her duties of office without the consent of the Commission.

Division 3 – Officers and employees

40. Registrar

(1) The Commission must appoint on merit a registrar of the Supreme Court.

(2) The registrar:

• (a) is to assist the Chief Justice in the management of the administrative affairs of the Supreme Court and the Court of Appeal, and the chief magistrate in the management of the administrative affairs of the Magistrates’ Court; and
  

(b) is to assist the Chief Justice and the chief magistrate in ensuring the orderly and expeditious exercise of the jurisdiction of those courts; and

(c) may act on behalf of the Chief Justice and the chief magistrate for the purposes of paragraphs (a) and (b); and

(d) has power to do all things necessary or convenient to be done for the purpose of assisting the Chief Justice and the chief magistrate under paragraphs (a) and (b); and

(e) is to assist the Chief Justice in undertaking his or her duties under section 52; and

(f) is responsible for the efficient operation of the Supreme Court registry; and

(g) must discharge such other duties as may be prescribed by the statutory orders or the Rules of Court.

(3) The Commission may appoint a person to be an acting registrar. An acting registrar, during the time for which he or she is appointed, must perform the duties of the registrar.

(4) A person holding the office of registrar or acting as the registrar is entitled to the salary, allowances and benefits applicable to that office as set out in the table in Part 2 of the Schedule. The benefits are described in detail in Part 3 of the Schedule.

(5) A person appointed to act as the registrar must continue to act until the end of the period for which he or she is appointed unless the person:

• (a) resigns from his or her acting appointment; or
  

(b) is suspended or removed under Part 7.

41. Functions of the registrar relating to court personnel

(1) The registrar of the Supreme Court:

(a) is responsible for the efficient management and control of court personnel; and

(b) must advise the Chief Justice on the salaries and salary scales of court personnel; and

(c) must identify, after consultation with the Chief Justice, training programs for court personnel; and

(d) must bring to the notice of the Chief Justice any matter which affects the employment of court personnel; and

(e) must implement statutory orders relating to court personnel.

(2) (Repealed)

42. (Repealed)

43. Other officers

(1) The Commission may appoint on merit such assistant registrars, sheriffs and other officers of the Supreme Court as the Commission considers necessary for the efficient operation of the Court.

(2) An assistant registrar, sheriff or other officer must discharge such duties as may be prescribed by the statutory orders or the Rules of Court, or as a judge of the Court or the registrar may direct.

(3) The Commission may appoint a person to act as an assistant registrar or other officer of the Court.

(4) An officer appointed under this section or a person acting as an officer is entitled to the salary, benefits and allowances prescribed by the statutory orders.

(5) The sheriff is responsible for the service and execution of all writs, summonses, rules, orders, warrants and processes of the Supreme Court directed to the sheriff.

(6) The sheriff is also responsible for:

(a) taking, receiving and detaining all persons committed to his or her custody by the Supreme Court; and

(b) discharging such persons when so directed by the Court or otherwise required by law.

(7) An officer appointed under this section may authorise persons to assist him or her in the exercise of any of his or her powers or the performance of any of his or her functions.

44. Other employees

(1) The Commission may engage on merit such other employees as the Commission considers necessary for the purposes of the Supreme Court.

(2) An employee is entitled to the salary, benefits and allowances as are prescribed by the statutory orders.

PART 5 – THE COURT OF APPEAL

45. Appointment of Supreme Court judges and disqualification

(1) A judge of the Supreme Court may sit as a judge of the Court of Appeal in accordance with Article 50 of the Constitution.

(2) A judge so acting is entitled to the allowances and benefits as set out in the table in Part 1 of the Schedule. The benefits are described in detail in Part 3 of the Schedule.

(3) A judge of the Supreme Court whose judgement is under consideration in any proceeding before the Court of Appeal must not sit as a member of the Court of Appeal in that proceeding.

46. Administration

(1) The Chief Justice is responsible for the administration of the Court of Appeal and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the Court of Appeal.

(2) Subject to this Act, the Chief Justice has power to do all things necessary or convenient to be done for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the Court of Appeal.

47. Registrar and other officers

(1) The Commission may appoint on merit a registrar and such other officers as are necessary to administer the Court of Appeal.

(2) A person holding the office of registrar is entitled to the salary, allowances and benefits applicable to that office as set out in the table in Part 2 of the Schedule, unless he or she also holds the office of the registrar of the Supreme Court. The benefits are described in detail in Part 3 of the Schedule.

(3) The Commission may appoint any officer of the Supreme Court to undertake similar duties in the Court of Appeal.

(4) The registry of the Court of Appeal established under section 24 of the Courts Act [Cap. 122] continues in existence on and after commencement as if that Act had not been repealed.

48. Appellate jurisdiction

(1) Subject to the provisions of this Act and any other Act, the Court of Appeal has jurisdiction to hear and determine appeals from judgements of the Supreme Court.

(2) The Chief Justice must, in consultation with the other judges of the Supreme Court, decide the composition of the Court of Appeal for the hearing of proceedings before the Court.

(3) For the purpose of hearing and determining an appeal from the Supreme Court, the Court of Appeal:

• (a) may exercise such powers as may be prescribed by or under this Act or any other law; and
  
• (b) has the powers and jurisdiction of the Supreme Court; and
  
• (c) may review the procedure and the findings (whether of fact or law) of the Supreme Court; and
  
• (d) may substitute its own judgement for the judgement of the Supreme Court.
  

(4) The Court of Appeal may deal with the appeal on the notes of evidence that were recorded in the Supreme Court without hearing the evidence again. However, the Court of Appeal may receive further evidence.

(5) In the exercise of the appellate jurisdiction of the Court of Appeal, any judgement of the Court of Appeal has full force and effect, and may be executed and enforced, as if it were an original judgement of the Supreme Court.

PART 6 – FUNDING, PROTECTION AND ACCOUNTABILITY OF THE JUDICIAL SERVICE AND THE COURTS

49. Funding of the Judicial Service and the Vanuatu Courts

(1) The Government must ensure that there is a sufficient budget allocated for the operations of the Judicial Service and the Vanuatu Courts to enable the Judicial Service to perform its functions and each of the Courts to exercise its jurisdiction and powers as provided for under the Constitution, this Act and any other law.

(2) The operations of the Judicial Service and the Vanuatu Courts are to be funded by monies appropriated by Parliament for that purpose.

(3) To avoid doubt, the budget procedure provided for by the Public Finance and Economic Management Act [Cap. 244] applies in relation to the budget for the operations of the Judicial Service and the Vanuatu Courts.

50. Management improvement plan

(1) The Chief Justice must, with the assistance of the registrar and the chief magistrate, prepare a management improvement plan for improving the efficiency and effectiveness of the operations of the Judicial Service and the Vanuatu Courts.

(2) A management improvement plan must be prepared for each year and must be submitted to the Commission within 2 months after the start of the year to which the plan relates.

51. Annual report and financial statements

(1) As soon as practicable after the end of each financial year and not later than 3 months after the end of that year, the Chief Justice must submit to the Minister:

(a) a report of the management of the administrative affairs of the Judicial Service and the Vanuatu Courts during the financial year; and

(b) financial statements in respect of that financial year.

(2) The report must also include the following:

(a) details of all the positions in the Judicial Service, indicating which were filled and for which parts of the year;

(b) details of the number of cases by type and court, and total:

(i) at the start and end of the year; and

(ii) pending at the start and end of the year; and

(iii) registered during the year; and

(iv) finalised during the year;

(c) details by type and court, and total of:

(i) the average time from registration to finalisation for cases finalised during the year, whenever they commenced; and

(ii) the average costing per case.

(d) a list of relevant committees and bodies active during the year together with details of their membership and a summary of their work;

(e) a summary of the most important cases finalised during the year;

(f) details of the implementation of the management improvement plan.

(3) Before submitting the financial statements to the Minister, the Chief Justice must submit them to the Auditor-General who must report to the Minister:

(a) whether in the opinion of the Auditor-General the statements are based on proper accounts and reports; and

(b) whether the statements are in agreement with the accounts and records of the Judicial Service and the Vanuatu Courts; and

(c) whether in the opinion of the Auditor-General the receipt, expenditure and investment of moneys, and the acquisition and disposal of assets, during the year have been in accordance with this Act and any other relevant law; and

(d) as to such other matters arising out of the statements as the Auditor-General considers should be reported to the Minister.

(4) The Minister must cause a copy of the annual report and the financial statements together with a copy of the report of the Auditor-General to be laid before Parliament within 7 days after their receipt by the Minister, or within 7 sitting days after the commencement of the next ordinary session.

52. Proper accounts to be kept

(1) The Chief Justice must ensure that proper accounts and records of the transactions and affairs relating to the administration of the Judicial Service and the Vanuatu Courts are kept.

(2) The Chief Justice is to do all things necessary to ensure that:

• (a) all payments out of the money appropriated for the purposes of the Judicial Service and the Vanuatu Courts are correctly made and properly authorised; and
  
• (b) adequate control is maintained over assets held by, or in the custody of, the Chief Justice on behalf of the State and over the incurring of liabilities on behalf of the State under this Act.
  

53. Audit

(1) The Auditor-General must, within 2 months after the end of each financial year, inspect and audit the accounts and records of financial transactions relating to the administration of the affairs of the Judicial Service and the Vanuatu Courts for that year, including records relating to any assets held by, or in the custody of, the Chief Justice on behalf of the State.

(2) The Auditor-General must immediately draw to the attention of the Minister any irregularity disclosed by the inspection and audit that, in the opinion of the Auditor-General, is of sufficient importance to justify his or her so doing.

(3) The Auditor-General may, at his or her discretion, dispense with all or any part of the detailed inspection and audit of the accounts or records.

(4) The Auditor-General is to report to the Minister the results of the inspection and audit carried out.

(5) The Auditor-General or a person authorised by him or her is entitled at all reasonable times to full and free access to all accounts and records maintained under section 52, and any other accounts and records, relating directly or indirectly to the receipt or payment of moneys, or to the acquisition, receipt, custody or disposal of assets, by the Chief Justice on behalf of the State.

(6) The Auditor-General or a person authorised by him or her may make copies of, or take extracts from, any such accounts and records.

(7) The Auditor-General or a person authorised by him or her may require any person to give him or her information in the person’s possession or to which the person has access which the Auditor-General or authorised person considers necessary for the purposes of the functions of the Auditor-General under this Act, and the person must comply with the requirement.

(8) A person who, without reasonable excuse, contravenes subsection (7) is guilty of an offence and is punishable on conviction by a fine not exceeding VT 500,000.

54. Proceedings arising out of administration

Any judicial or other proceedings relating to a matter arising out of the management of the administrative affairs of the Judicial Service or the Vanuatu Courts may be instituted by or against the State, as the case requires.

55. Protection of judges, magistrates and other officers

(1) Subsection (2) applies to person who is a judicial officer, or an officer of the Court of Appeal, the Supreme Court or the Magistrates’ Court who is acting in a judicial capacity.

(2) The person is not liable to be sued in any court for any act done, or ordered to be done, by the person in the discharge of his or her judicial duty if the person:

(a) acted in good faith in doing or ordering the act; and

(b) believed that he or she had the jurisdiction to do or order the act;

whether or not the act was within the limits of his or her jurisdiction.

(3) Subsection (4) applies to a person who:

(a) is an officer of the Court of Appeal, the Supreme Court or the Magistrates’ Court; or

(b) has been appointed to execute the warrants or orders of a judge, magistrate or any other person who is acting in a judicial capacity.

(4) The person is not liable to be sued in any court for the execution of any warrant or order if the warrant or order on its face appears to have been issued by another person with the jurisdiction to do so.

56. Improper influence and obstruction of judicial officers

(1) A person must not improperly influence or obstruct a judicial officer in the exercise of his or her functions.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding VT 500,000 or imprisonment for not more than one year, or both.

PART 7 – DISCIPLINE OF COURT PERSONNEL

57. Application of Part

This Part applies to all court personnel.

58. Disciplinary offences

A person commits a disciplinary offence if he or she does any of the following:

(a) contravenes or fails to comply with the provisions of this Act or the statutory orders;

(b) contravenes or fails to comply with the requirements of:

• (i) any lawful order or instruction issued under this Act or the statutory orders; or
  
• (ii) any official instrument which is made under the authority of the Commission or the registrar of the Supreme Court;
  

(c) is negligent, careless or incompetent in the discharge of his or her duties;

(d) acts in a manner so as to cause unreasonable distress to other court personnel or to affect adversely the performance of their duties;

(e) uses intoxicating liquors or drugs to excess, or in such manner as to affect adversely the performance of his or her duties, or uses intoxicating liquors during work hours or takes prohibited substances;

(f) either:

• (i) improperly uses or removes property of any kind, including money, in his or her official custody or under his or her control; or
  
• (ii) fails to take reasonable care of such property;
  

(g) otherwise than in the proper discharge of his or her duties:

• (i) directly or indirectly discloses any information acquired by him or her in the course of his or her duties; or
  
• (ii) uses such information for private purposes; or
  

(h) is absent from his or her office during hours of duty or official duties without leave or a valid excuse;

(i) is guilty of misconduct in his or her official capacities;

(j) acts in a manner that is likely:

• (i) to affect adversely the performance of his or her duties; or
  
• (ii) to bring the Judicial Service into disrepute;
  

(k) is convicted of a criminal offence;

(l) commits any other offence prescribed by the statutory orders as a disciplinary offence.

59. Establishment of Court Personnel Disciplinary Board

(1) The Court Personnel Disciplinary Board is established.

(2) The Board consists of 3 members who are to be appointed by the Commission. A person cannot be appointed as a member unless he or she has appropriate qualifications or relevant experience. The members must elect a member to be the Chairperson of the Board.

(3) The Board may, if in its opinion a case involves a matter of a technical or specialised nature, appoint a person who in its opinion has expert knowledge of the matter to be an assessor for the purposes of the case.

(4) An assessor must sit with the Board and act in all respects as an extra member of the Board for the hearing and determination of the case. However, the assessor must not vote in the determination of the case.

(5) A member of the Board is to be paid such allowances as are prescribed by the statutory orders.

(6) Subject to this Act, the Board is to regulate its own procedures.

60. Hearing and confirmation of disciplinary offences

(1) Proceedings for a disciplinary offence are to be instituted before the Board in accordance with the rules prescribed by the Commission and the Board must hear and decide the disciplinary offence in accordance with those rules.

(2) In deciding a disciplinary offence, the Board may do one or more of the following:

• (a) dismiss the matter;
  
• (b) issue a warning or reprimand to the officer concerned;
  
• (c) demote that officer;
  
• (d) suspend that officer from the Judicial Service;
  
• (e) remove that officer from the Judicial Service.
  

(3) The Board must, within 7 days after making its decision, forward a copy of the decision:

• (a) to the Commission; and
  
• (b) to the officer concerned.
  

(4) If the officer concerned does not appeal against the Board’s decision under section 61, the Commission must review the Board’s decision.

(5) The Commission may confirm, vary or set aside the Board’s decision on review.

(6) The Commission must give written notice of its decision to the offender within 7 days after making its decision on review.

61. Rights of appeal by court personnel

(1) A person (other than a person who is on probation) to whom a decision of the Board made under section 60 relates may appeal to the Commission against the Board’s decision.

(2) An appeal must:

• (a) be in writing; and
  
• (b) set out the grounds of the appeal; and
  
• (c) be made to the Secretary to the Commission within 28 days, or such longer period as the Commission may allow in a particular case, after the date on which the Board’s decision was made.
  

(3) The Commission must not extend the period for making an appeal under subsection (2) unless the Commission is satisfied that the appellant has shown good and sufficient reasons in writing for doing so.

(4) The Commission may confirm, vary or set aside the Board’s decision.

(5) The proceedings of the Commission on appeal are not open to the public, but any person who is authorised by the Commission may attend any hearing or part of a hearing.

(6) The appellant is entitled to be present and may be represented or assisted by a solicitor or barrister at an appeal. The appellant bears the onus of proof in an appeal.

(7) The Commission must determine its procedures in respect of any matter that is not expressly provided for by this Act or the statutory orders.

(8) The Commission may before the hearing, or at any time during the hearing, of an appeal dismiss the appeal on the ground that the appeal is frivolous or vexatious, or should not otherwise have been made.

62. Powers of Board to summon witnesses etc.

(1) For the purpose of carrying out its functions in relation to disciplinary offences, the Board may require by notice in writing any person to appear before it to give evidence and produce any document or thing.

(2) A person who fails to comply with a notice is guilty of an offence punishable on conviction by a fine not exceeding VT 10,000.

63. Offence to improperly influence Commission or Board

(1) A person must not improperly influence or obstruct the Commission, the Board or any member in respect of any disciplinary hearing or appeal.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by fine not exceeding VT 10,000.

(3) Nothing in this section is to be construed so as to prohibit a person from:

(a) giving information to the Board or the Commission; or

(b) making representations in respect of any case or appeal to the Board or the Commission in the following circumstances:

(i) as a witness;

(ii) as a defendant or appellant;

(iii) as the representative of a person at a hearing.

PART 8 – MISCELLANEOUS

64. Seals

The Magistrates’ Court, the Supreme Court and the Court of Appeal must each have an official seal and must use the seal as required. The Commission must approve the design of the seal of each Court.

65. Inherent powers of Supreme Court and Court of Appeal, and custom

(1) The Supreme Court and the Court of Appeal have such inherent powers as are necessary to carry out their functions. The powers are subject to:

(a) the Constitution; and

(b) any other written law; and

(c) the limitations of each Court’s jurisdiction.

(2) For the purpose of facilitating the application of custom, a provision of any Act or law may provide that it may be construed by the Court of Appeal, the Supreme Court or the Magistrates’ Court with such alterations and adaptations as may be necessary.

(3) The Supreme Court and the Court of Appeal have the inherent and incidental powers as may be reasonably required in order to apply custom.

(4) The Magistrates’ Court has the incidental powers as may reasonably be required in order to apply custom.

66. Judicial Committee and Rules of Court

(1) The Judicial Committee established by section 30 of the Courts Act [Cap. 122], as in force immediately before commencement, continues in existence on and after commencement as if that Act had not been repealed.

(2) However, the Committee is to consist of the following 5 members:

(a) the Chief Justice as chairperson;

(b) a judge of the Supreme Court as deputy chairperson;

(c) the Attorney General;

(d) the Public Prosecutor;

(e) a legal practitioner appointed by the Minister on the recommendation of the private legal profession.

(3) The Judicial Committee may make Rules of Court, not inconsistent with this Act or the statutory orders, for or in relation to the following:

(a) the practice and procedure of the Magistrates’ Court, the Supreme Court and the Court of Appeal;

(b) the criminal and civil jurisdiction of such Courts, including the procedure for the making and hearing of appeals to the Supreme Court and the Court of Appeal;

(c) the fees to be paid in respect of proceedings in the Magistrates’ Court, the Supreme Court and the Court of Appeal;

(d) all matters and things incidental to such practice, procedure, jurisdiction and fees;

(e) all matters and things necessary or convenient to be prescribed for the conduct of any business of the Magistrates’ Court, the Supreme Court and the Court of Appeal.

(4) Rules prescribing or affecting the amount of any fees or their recovery do not come into operation unless approved by the Commission.

(5) The Judicial Committee is to regulate its own procedures, however, a quorum consists of 3 members. A member of the Judicial Committee is entitled to the allowances prescribed by the statutory orders.

(6) All rules made by the Judicial Committee that were in force immediately before commencement are to continue in force on and after commencement.

67. Review of salaries and benefits

(1) The Government Remuneration Tribunal established by the Government Remuneration Tribunal Act [Cap. 250] may review the salaries, allowances and benefits of judicial officers and court personnel every 2 years, and following the review, may make recommendations to the Commission.

(2) If the Government Remuneration Tribunal makes a recommendation to the Commission, the Commission may by statutory order add to, vary or replace the Schedule, but not to the detriment of any office holder while he or she is in office.

68. Oath or affirmation of office

The master, registrar and any officer appointed under section 43 must, before proceeding to discharge the duties of the office, take before the Chief Justice or a judge an oath or affirmation in the following form:

'I, ___________, do swear that I will well and truly serve in the office of the Supreme Court that I will do right to all manner of people according to law, without fear or favour, affection or ill will, so help me God.'

69. Continuous service for public servants

(1) This section applies to an officer or employee in the Public Service within the meaning of the Public Service Act [Cap. 246] who is:

(a) appointed as a judicial officer; or

(b) appointed or engaged as a member of court personnel; or

(c) appointed as Secretary of the Commission on a full time basis or an employee of the Commission.

(2) The officer or employee’s period of service in the Public Service is to be counted as part of and continuous with his or her service in the Judicial Service for the purposes of leave, pension and any other condition of service. To avoid doubt, no redundancy or severance payment is to be made to the officer or employee.

70. Statutory orders

(1) The Commission may make statutory orders, not inconsistent with this Act, prescribing all matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting subsection (1), the Commission may make statutory orders for and in relation to the following matters:

(a) the appointment, classification, promotion, transfer, suspension or removal of judicial officers and court personnel;

(b) the recognition of appropriate qualifications and experience for the purposes of determining salaries of judicial officers and court personnel;

(c) matters relating to the terms and conditions of service of judicial officers and court personnel, including:

• (i) hours of attendance;
  
• (ii) leave of absence, including leave gratuity;
  
• (iii) pension entitlements, including contributions to a pension fund;
  
• (iv) physical working conditions, including the occupation of official quarters and the provision of official transport;
  
• (v) remuneration for overtime duty, and travel, subsistence, climatic, local and other allowances;
  
• (vi) payment or reimbursement of transfer, resettlement and other out of pocket costs and expenses;
  
• (vii) the issuing of instructions and guidelines about terms and conditions of service;
  

(d) the training and continuous education of judicial officers and court personnel, including financial assistance for such training and education;

(e) a code of conduct for judicial officers and court personnel;

(f) disciplinary procedures for judicial officers and court personnel;

(g) matters relating to the duties, responsibilities and functions of judicial officers and court personnel;

(h) the legal liability of judicial officers and court personnel in respect of any act or omission relating to this Act or any other law;

(i) medical examinations of judicial officers and court personnel, and the form of medical reports and certificates;

(j) the circumstances under which judicial officers and court personnel may be found guilty of misconduct, or to be suffering from continued ill-health, or of incapacity to carry out his or her duties of office efficiently;

(k) the procedure for dealing with complaints and grievances against judicial officers and court personnel;

(l) the provision of health insurance or medical aid schemes for judicial officers, court personnel and their dependants, including contributions to such schemes;

(m) the recognition of professional bodies or staff associations;

(n) any other matter which is reasonably necessary for the regulation of the conditions of service of judicial officers and court personnel;

(o) any other matter in connection with the rights, functions and duties of judicial officers and court personnel.

(3) Different statutory orders may be made for different classes of judicial officers or court personnel.

(4) The Minister must table a statutory order made under this section or any other section of this Act in the Parliament within 5 sitting days after the commencement of the next ordinary session following the making of the statutory order.

(5) If a statutory order is not tabled in the Parliament in accordance with subsection (4), it ceases to have effect on the expiry of the 5 sitting days.

(6) A statutory order remains in force unless and until the Parliament by resolution disallows the statutory order in which case the statutory order ceases to have effect from the date specified in the resolution.

(7) Any statutory order which results in State expenditure must be made with the concurrence of the Minister responsible for finance.

(8) A statutory order under this section may make provision for and in relation to a matter by applying, adopting or incorporating, with or without modification, the provisions of any regulations, instrument or other document as in force at a particular time or as in force from time to time.

71. (Omitted)

PART 9 – REPEAL AND TRANSITIONAL PROVISIONS

72. Repeal of Courts Act

(1) The Courts Act [Cap. 122] is repealed.

(2) To the extent that it is possible, all references in any other Act or law to the Courts Act [Cap. 122] on and after commencement is taken to be a reference to this Act.

(3) All references in any other Act or law to a provision of the Courts Act [Cap. 122] on and after commencement is taken to be a reference to the corresponding provision (if any) of this Act.

73. Judges – Transitional and savings provision

(1) This section applies to a person who immediately before commencement occupied the office of a judge or was an acting judge.

(2) On and after commencement, the person is taken to be entitled to the same terms and conditions of service, including salary, benefits and allowances, as he or she was entitled to immediately before commencement.

(3) If, immediately before commencement:

(a) a law relating to any condition of service; or

(b) an instrument relating to any duties, functions or powers;

applied to the person, the law or instrument continues to apply to the person on and after commencement subject to the provisions of this Act and the statutory orders.

74. Magistrates – Transitional and savings provision

(1) This section applies to a person who immediately before commencement occupied the office of magistrate.

(2) On and after commencement, the person is taken to have been appointed under this Act on the same terms and conditions of service, including salary, benefits and allowances, as he or she was entitled to immediately before commencement.

(3) If, immediately before commencement:

(a) a law relating to any condition of service; or

(b) an instrument relating to any duties, functions or powers;

applied to the person, the law or instrument continues to apply to the person on and after commencement subject to the provisions of this Act and the statutory orders.

75. Court personnel – Transitional and savings provision

(1) This section applies to a person who immediately before commencement was:

(a) a clerk of the Magistrates’ Court appointed under section 8 of the Courts Act [Cap. 122] or an officer of the Court appointed under section 9 of that Act or any other employee of the Court; or

(b) an officer of the Supreme Court appointed under section 22 of Courts Act [Cap. 122] or any other employee of the Court; or

(c) an officer of the Court of Appeal appointed under section 24 of the Courts Act [Cap. 122].

(2) On and after commencement, the person is taken to have been appointed or engaged under this Act on the same terms and conditions of service, including salary, benefits and allowances, as he or she was entitled to immediately before commencement.

(3) If, immediately before commencement:

(a) a law relating to any condition of service; or

(b) an instrument relating to any duties, functions or powers;

applied to the person, the law or instrument continues to apply to the person on and after commencement subject to the provisions of this Act and the statutory orders.

76. Saving of orders, acting appointments and Rules of Court

(1) An Order made under section 1(2) of the Courts Act [Cap. 122] that was in force immediately before commencement, continues in force, on and after commencement, as if the Order had been made under this Act.

(2) An Order made under section 5(2) or (3) of the Courts Act [Cap. 122] that was in force immediately before commencement, continues in force, on and after commencement, as if the Order had been made under this Act.

(3) An Order made under section 13 of the Courts Act [Cap. 122] that was in force immediately before commencement, continues in force, on and after commencement, as if the Order had been made under this Act.

(4) If an appointment made under section 20(1) of the Courts Act [Cap. 122] was in force immediately before commencement, the appointment continues in force, on and after commencement, as if it had been made under this Act.

(5) Any Rules of Court made under section 30 of the Courts Act [Cap. 122] that were in force immediately before commencement, continue in force, on and after commencement, as if they had been made under this Act.

(6) If an appointment made under section 30(2) of the Courts Act [Cap. 122] was in force immediately before commencement, the appointment continues in force, on and after commencement, as if it had been made under this Act.

77. Existing proceedings saved

(1) This section applies to any proceedings in the Magistrate’s courts, the Supreme Court or the Court of Appeal that had not been finally disposed of immediately before commencement.

(2) The proceedings continue, on and after commencement, as if the Courts Act [Cap. 122] had not been repealed.

78. Act does not take away or limit jurisdiction

Except as is provided for by this Act, this Act does not take, lessen or impair any jurisdiction or power that was, immediately before commencement, vested in or capable of being exercised by:

(a) the Court of Appeal or one or more judges of that Court; or

(b) the Supreme Court or one or more judges of that Court; or

(c) the Magistrate’s courts or one or more magistrates.

SCHEDULE

PART 1

TABLE OF SALARIES, ALLOWANCES AND BENEFITS OF JUDGES, MASTER AND MEMBERS OF THE COMMISSION

* If the holder of the office is a not a citizen of the Republic of Vanuatu and is entitled to an allowance under Class "H", he or she is not entitled to the following:

(a) a cost of living allowance under Class "G";

(b) study leave under Class "J";

(c) payment or reimbursement in Class "F";

(d) long service leave under Class "I";

(e) medical expenses within and outside of Vanuatu under Classes "K1" and "K2";

(f) death in service benefits under Class L.

PART 2

TABLE OF SALARIES AND BENEFITS OF CHIEF MAGISTRATE, REGISTRAR AND MAGISTRATES

* If the holder of the office and is entitled to an allowance under Class "H", he or she is not entitled to a cost of living allowance under Class "G" and long service leave under Class "I".

PART 3

DETAILS OF BENEFITS

CLASS A BENEFITS

1. (i) Rent-free furnished house;

(ii) Furnished house at a rental fixed by the Government;

(iii) Housing allowance to be paid by the Government at a rate to be fixed by the Commission in consultation with the Public Service Commission.

CLASS B BENEFITS

2. (i) Use of one car for official use maintained and serviced at the Government’s expense; or

(ii) Use of transport provided by the Government for official use to and from official place of work.

CLASS C BENEFITS

3. A child allowance of VT 1,500 a month per child.

CLASS D BENEFITS

4. A gratuity or bonus payable at the rate of one twelfth of the annual salary, multiplied by 2, for each year during which a person holds the office and pro-rata for each uncompleted year.

CLASS E BENEFITS

5. (i) Annual leave at the rate of 42 working days after 12 months of service;
   
   • (ii) Annual leave calculated at the rate of one and three-quarter working days for every month of service.
     

CLASS F BENEFITS

6. (i) The payment or the reimbursement of the actual cost of transport between Port Vila and the home island and return journey by the most direct route on home leave.

(ii) The reimbursement of 50% percent of the actual cost of transport between Port Vila and the home island and return journey by the most direct route on home island leave.

(iii) For the avoidance of doubt, not more than one payment or reimbursement may be made to any officer to whom this benefit applies within any 12-month period.

CLASS G BENEFITS

7. Cost of living of VT 4,250 a month.

CLASS H BENEFITS

8. If the holder of the office is not a citizen of the Republic of Vanuatu and is not funded by any other government or agency, an annual overseas officer’s allowance agreed to by the Minister with the approval of the Council of Ministers.
   

However, the agreed allowance must not exceed one-fifth of the amount of salary paid to the Chief Justice, judge or magistrate in any one year.

CLASS I BENEFITS

9. Sixty days leave on full pay or 90 days on half pay after 10 years continuous service.

CLASS J BENEFITS

10. Subject to the approval of the Commission, study leave not exceeding 2 years on full salary after 5 years continuous service.

CLASS K1 BENEFITS (Medical expenses within Vanuatu)

11. (1) Subject to the approval of the Commission, the Government must pay or reimburse, as the case requires, all reasonable costs of any medical treatment or examination of judicial officers and court personnel and their immediate family incurred at a public health facility.
    

(2) Payment or reimbursement must be made to the appropriate person determined by the Director-General of Finance upon application in writing to him or her, and the production of receipts or invoices for the medical treatment or examination in question.

(3) Subject to the approval of the Commission, the Government must pay or reimburse, as the case requires, all reasonable costs of any medical treatment or examination of judicial officers and court personnel and their immediate family upon the production of receipts or invoices from a medical practitioner in private practice.

(4) However, the registered medical practitioner must certify that the private practice treatment is necessary and is unavailable in a public health facility, and have the approval of the Director-General of Finance to treat the person concerned.

(5) The cost of any item necessary for medical purposes, including glasses, hearing aids and other medical appliances, that is certified as necessary by a registered medical practitioner or registered optometrist must also be paid for or reimbursed, as the case requires, by the Government.

CLASS K2 BENEFITS (Overseas Medical Treatment)

12. (1) Judicial officers and court personnel and their immediate family are eligible for full payment of overseas medical treatment or examination subject to a registered medical practitioner certifying that the treatment is necessary and unavailable in Vanuatu at a reasonable cost.
    

(2) Transport from Vanuatu to another country and return for the purpose of receiving medical treatment or examination.

(3) Accommodation overseas while receiving medical treatment or examination.

(4) The reimbursement by the Government of the costs of transport and accommodation of one person to accompanying the person being treated or examined.

(5) The accompanying person must apply in writing to the Director-General of Finance attaching receipts, invoices and other documents showing the actual costs incurred in respect of the transport and accommodation for the purpose of having such costs reimbursed.

CLASS L BENEFITS (Death in service)

13. (1) If a person who is a judicial officer or a member of court personnel (other than an expatriate contract officer) dies during the course of his or her service, the Government must pay the person’s legal representative the following entitlements:
    
    • (a) salary accrued to the date the person’s employment ceases;
      
    • (b) accrued allowances rounded up to the end of the month in which the person’s employment ceases;
      
    • (c) accrued annual recreation leave;
      
    • (d) if applicable - severance payments calculated on the basis of 2 weeks or one month per year of services depending on the form of cessation if employed for 12 continuous months or more;
      
    • (e) if applicable - payment in lieu of any required notice of termination;
      
    • (f) a sum equivalent to 6 months total yearly remuneration (including any allowances the employee was receiving) plus one month remuneration for every one year of service provided by the employee;
      
    • (g) a pro-rata amount for any period of less than 12 months employment that the person was in continuous employment with the Judicial Service;
      
    • (h) in the case of citizens of Vanuatu - repatriation costs of the body back to his or her home island and place of origin.
      

(2) If a person who is an expatriate contract officer dies during the course of his or her service, the Government must pay a sum equivalent to the unpaid gratuity (if any) that would have been due to the person had he or she completed the whole of the contract period.

CLASS M BENEFITS

14. The Class M benefits are the following:

(a) return airfare (business class);

(b) accommodation;

(c) meals;

(d) transport to and from accommodation and the Supreme Court for official purposes;

(e) such other benefits as are prescribed by statutory order by the Commission.

PART 4
(Omitted)

________________________________

Table of Amendments

1 Amended by Act 4 of 2003
2(2) Amended by Act 4 of 2003
4(1)(a)(iii) Amended by Act 4 of 2003
4(1)(h) Repealed by Act 4 of 2003
4(4) Substituted by Act 4 of 2003
14(2) Amended by Act 4 of 2003
14(4),(5),(6) Inserted by Act 4 of 2003
18(2)(a) Amended by Act 4 of 2003
18(4),(5),(6) Inserted by Act 4 of 2003
19(5) Amended by Act 4 of 2003
19(5)(a) Amended by Act 4 of 2003
20(3)(b) Amended by Act 4 of 2003
23(4)(a) Amended by Act 4 of 2003
23(4)(c),(d) Inserted by Act 4 of 2003
25(2) Amended by Act 4 of 2003
25(3) Amended by Act 4 of 2003
29(1),(3),(6) Amended by Act 4 of 2003
30(2)(a) Substituted by Act 4 of 2003
30(2)(f) Inserted by Act 4 of 2003
30(3) Repealed by Act 4 of 2003
33(3) Amended by Act 4 of 2003
33(5) Amended by Act 4 of 2003
34(2), (3) Repealed by Act 4 of 2003
35(5), (6) Repealed by Act 4 of 2003
41(2) Repealed by Act 4 of 2003
42 Repealed by Act 4 of 2003
55(4) Amended by Act 4 of 2003
71 Commencement provision omitted per Cap. 295
Schedule:
Part 1, Item 5 Repealed by Act 4 of 2003
Part 2, Item 2 Inserted by Act 4 of 2003
Part 4 Consequential amendments to Cap. 168 omitted per Cap. 295